Lowe v. Delaney

• Decision Date: 16 July 1907
• Citation: 44 So. 710,54 Fla. 480
• Court: Florida Supreme Court
• Parties: LOWE v. DELANEY et al.

44 So. 710

54 Fla. 480

LOWE v. DELANEY et al.

Florida Supreme Court

July 16, 1907

In Banc. Action between Samuel S. Lowe and Amelia E. Delaney and others. Lowe's appeal from the decree having been dismissed, he petitions for its reinstatement. Petition denied.

Syllabus by the Court

SYLLABUS

When under the law an appeal taken should have been made returnable to the next ensuing term of the appellate court after its entry, but, instead, was made returnable to the second term of such court thereafter, it is fatal to the appeal, and it will be dismissed.

The use of the Latin abbreviation 'et al.' in the entry of an appeal will not include any one as a party to such appeal except those who are expressly and fully named as parties in such entry of appeal; and, where the appeal is from a decree in partition, all the parties to such decree must expressly and by name by made parties to such appeal, otherwise such appeal will be dismissed for want of necessary parties.

An amendment of an appeal so as to bring in new parties appellant will not be allowed after the expiration of the time limited by law for taking appeals.

COUNSEL

H. H. Taylor and E. M. Semple, for petitioner.

OPINION

PER CURIAM.

This cause came on at this day upon a petition filed by the appellant praying for a reinstatement of the cause upon the dockets of this court; the same having been heretofore, on June 19, 1907, dismissed here. The cause was heretofore dismissed upon two grounds, viz.:

(1) Because the appeal was entered on November 21, 1906, and was made returnable to the June term, 1907, of this court thereby jumping over the January term, 1907, to which under the law such appeal should have been made returnable, and the transcript of record in the cause was not filed here until the 1st day of June, 1907.

(2) Because the appeal was from a decree in a suit for partition and yet only two of the parties to such suit were made parties to the appeal, viz., Samuel S. Lowe, as sole party appellant, and Amelia E. Delaney, as party appellee. The entry of appeal attempts to include other unknown parties as appellees by the use of the abbreviation 'et al.' but, as was held in the cases of State ex rel. Andreu v Canfield, 40 Fla. 36, 23 So. 591, 42 L. R. A. 72, and Cornell v. Franklin, 40 Fla. 149, 23 So. 589, 74 Am St. Rep. 131, the use of such an abbreviation does not include anyone as a party to an appeal except such as are...